A Way Out of the Same-Sex Marriage Mess

THE debate over same-sex marriage in the United States has become a battle between two totally opposing visions. Proponents of gay equality want the Supreme Court to proclaim same-sex marriage a fundamental right of citizens, which the court, given its conservative bent, seems unlikely to do. Opponents dream of a federal constitutional amendment banning same-sex unions, which also seems improbable, given rapidly evolving attitudes toward homosexuality.

President Obama has stepped into the breach, but the nuance of his recent announcement — affirming the ideal of equality while also expressing deference to state prerogative over marriage law — has not simplified matters. The contradiction in his remarks seems impossible to reconcile.

But there is a way. The Supreme Court, which will almost certainly have to take up the issue, should hold that while states may refuse to authorize same-sex marriages, they may not void — that is, refuse to recognize — gay marriages lawfully conducted in other states.

Yes, such a ruling would effectively make same-sex marriage legal throughout the country, because it would require Texas to recognize same-sex unions performed in Massachusetts. It would no doubt infuriate opponents.

But it would also be the best judicial solution. It would recognize the Supreme Court’s limited authority over marriage laws and leave it to state courts to resolve differences across states in areas like divorce, child custody and inheritance, as they have traditionally done.

It would allow the Supreme Court to manage, rather than impede, an inexorable process of social change. It would acknowledge that the unequal patchwork of state marriage laws cannot be sustained long-term. (Six states and the District of Columbia permit same-sex marriage; 30 states have constitutional amendments prohibiting it.)

Sooner or later, the Supreme Court will have to confront the problem; challenges to the Defense of Marriage Act, the 1996 statute that forbade federal recognition of same-sex marriage, and Proposition 8, the 2008 ban on same-sex marriage in California, are already making their way through the federal courts.

Some observers expect the court to dodge the issue. They assume that the best that can be hoped for is a long period of legal skirmishes that will gradually chip away at states’ denial of the rights and privileges of gay couples who marry where it is legal to do so. But a protracted and agonizing battle would not be good for anyone.

I happen to believe that same-sex marriage is a fundamental right under the 14th Amendment’s equal protection clause. But I also believe that the court isn’t ready to go that far. Directly mandating that states rewrite their laws to allow same-sex marriages (and that county clerks issue marriage licenses to gay couples) would risk the kind of backlash that followed court-ordered school desegregation in the 1950s.

In contrast, a more limited ruling that forbade states from voiding other states’ marriages would recognize equality as a fundamental norm of citizenship while also speaking to values, like fairness and neighborliness, that are often obscured by anti-marriage ballot initiatives. An example of this can be found in Wyoming, where Republican legislators defeated a bill last year that would have prohibited recognition of out-of-state marriages. (Wyoming is one of 10 states that do not issue same-sex marriage licenses but also do not have constitutional bans on same-sex marriage.)

Even dire opponents of same-sex marriage can appreciate the injustice of stripping away liberties granted by other states. Voiding some marriages, but not others, is so powerful an expression of inequality and disrespect for interstate reciprocity that it requires a stronger justification than anti-gay animus.

Currently, many states use principles that originated in international law to argue that they do not have to respect same-sex marriages performed in their sister states. The idea is that sovereign countries can withhold comity, or legal reciprocity, if there is a basis in policy for doing so; the United States need not recognize polygamous marriages or unions involving a child bride, for example, because those unions are widely seen as harmful to vulnerable parties.

But this analogy does not carry over to the states. Florida might argue that New York’s recognition of same-sex marriages is antithetical to Floridian culture and values, but that is out of sync with constitutional norms of federalism and equality, at a time when same-sex marriages, civil unions and domestic partnerships have become common.

(I even believe that states should have to recognize so-called evasive marriages — in which couples travel out of state to marry, and then return home — though the legal scholar Steve Sanders, who has advanced an argument similar to mine, does not go that far.)

Mr. Obama was right both to embrace equality as a principle and to respect the process by which the understanding of marriage gradually evolves to include same-sex couples, within the premises of federalism. What is needed now is a similarly coherent and sound ruling by the Supreme Court.

The Constitution allows for creative solutions to seemingly intractable conflicts. The justices should neither mandate state marriage law nor tolerate the arbitrary use of state power to void a critical legal status awarded to more and more American couples.